Criminal Law Commons^™

A Theory Of Differential Punishment, Jack Boeglin, Zachary Shapiro

Vanderbilt Law Review

A puzzle has long pervaded the criminal law: why are two offenders who commit the same criminal act punished differently when one of them, due to circumstances beyond her control, causes more harm than the other? This tradition of result-based differential punishment the practice of varying offenders' punishment based on whether or not they cause specific "statutory harms"-has long stood as an intractable problem for scholars and jurists alike.

This Article proposes a solution to this long-standing conceptual problem. We begin by introducing a dichotomy between two broad and exhaustive categories of ideological justifications for punishing criminal offenders. The first …

Police In America: Ensuring Accountability And Mitigating Racial Bias Feat. Professor Destiny Peery

Northwestern Journal of Law & Social Policy

No abstract provided.

Equality And The Defence Of Provocation: Irreconcilable Differences, Isabel Grant, Debra Parkes

Dalhousie Law Journal

Recent amendments to the defence of provocation have limited access to the defence to those who are provoked by conduct that, if prosecuted, would have been an indictable offence punishable by at least five years imprisonment. The paper argues that these amendments are both over- and under-inclusive and fail to confront the central problem surrounding provocation which is that it privileges loss-of-control rage often in the context of male violence against women or in response to same-sex advances. The paper supports the abolition of the defence of provocation but only if mandatory minimum sentences for murder are abolished providing trial …

Employing Older Prisoner Empirical Data To Test A Novel S. 7 Charter Claim, Adelina Iftene

Dalhousie Law Journal

This article builds the case for expanding s. 7 of the Charter of Canadian Rights and Freedoms to apply to prison regulations and decisions in the specific context of an aging prison population. As original empirical data shows, prisons are highly insensitive to age-related problems, and inappropriate or insufficient medical treatment receives official sanction from a wide range of correctional documents. The stark inadequacies of the current system endanger older prisoners' security of the person, and sometimes their lives, in ways that violate their rights under s. 7, since the deprivations they suffer result from legislative policies and state conduct …

Hit Them Where It Hurts: State Responses To Biker Gangs In Canada, Graema Melcher

Dalhousie Law Journal

From civil and criminal forfeiture, to "gangsterism"offences in the Criminal Code, Canada does not lack for tools to address biker gangs. Yet attempts to stamp out bikers have met with little to no success. State responses to criminal organizations should use those organizations' own structures and symbols of power against them. A gang's reputation may be effectively used against a gang, but this strategy poses significant challenges to prosecution. Attempts to use a gang's internal hierarchy and administrative structure can succeed, but may only produce circumstantial findings if not supported by sufficient and substantial evidence. Attempts to combat gang violence …

Left Behind: How The Absence Of A Federal Vacatur Law Disadvantages Survivors Of Human Trafficking, Jessica Emerson, Alison Aminzadeh

All Faculty Scholarship

After a hamstring injury in October of 2004 forced her to surrender her athletic scholarship at St. John's University, Shamere McKenzie chose to spend her winter break working in order to save the money she needed to pay the remainder of her tuition. In January of 2005, Shamere met a man named Corey Davis, who expressed an interest in dating her. After getting to know him for several weeks, she eventually shared with him the challenges she was having earning the money she needed to continue her enrollment in college. Davis encouraged her to consider exotic dancing as a way …

The Local Rules Revolution In Criminal Discovery, Daniel S. Mcconkie

Cardozo Law Review

Over the last few decades, federal district court judges throughout the country have used local rules to greatly expand pretrial criminal disclosure obligations, especially for prosecutors. These local criminal discovery rules both incentivize prosecutors to act as ministers of justice and empower judges to manage prosecutorial disclosures. This quiet revolution is now well underway, and the time has come to amend the Federal Rules of Criminal Procedure to bring these innovations to all the districts.

Commentators have long recognized that neither Supreme Court precedent nor the Federal Rules effectively require prosecutors to provide the defense with enough discovery to properly …

Human Torts, Lisa J. Laplante

Cardozo Law Review

Human Torts is the first article to describe how ordinary municipal tort lawsuits in the United States provide essential remedies for human rights abuses. Despite the rising level of hate crimes, bullying, corporate malfeasance, and other private acts that result in great harm and can lead to civil litigation, American scholars have never explored how everyday tort claims grounded in purely domestic common law doctrine between private, non-state actors are in fact human rights claims even if never pleaded as such in U.S. courts. Framing tort litigation as a form of human rights protection may appear to be a novel …

When An Appeal Goes Wrong: A “Criminal Justice Nightmare”, David R. Dow, Jeffrey R. Newberry

The Journal of Appellate Practice and Process

No abstract provided.

When The United States Loses In A Criminal Case: The Government Appeal Process, Margaret D. Mcgaughey

The Journal of Appellate Practice and Process

No abstract provided.

Juror Assessment Of Certainty About Firearms Identification Evidence, Sarah L. Cooper, Paraic Scanlon

University of Arkansas at Little Rock Law Review

No abstract provided.

Criminal Law—When The Pillow Talks: Arkansas's Rape Shield Statute Bars Dna Evidence Excluding The Defendant As The Source Of Semen. Thacker V. State, 2015 Ark. 406, 474 S.W.3d 65., Lacon Marie Smith

University of Arkansas at Little Rock Law Review

No abstract provided.

Criminal Law—A Formal Exercise Of Governmental Corruption: Applying The “Stream Of Benefits” Theory To The Federal Bribery Statute. Mcdonnell V. United States, 136 S. Ct. 2355 (2016)., Taylor Williams

University of Arkansas at Little Rock Law Review

No abstract provided.

"I'Ve Got My Mind Made Up": How Judicial Teleology In Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence, Michael L. Perlin

Cardozo Journal of Equal Rights & Social Justice

The article critiques the teleological reasoning employed by judges in cases involving biologically-based evidence, particularly in mental disability law. It argues that judges often prioritize pre-determined outcomes over evidence, leading to decisions that neglect valid scientific data and violate the principles of therapeutic jurisprudence.

Book Review: The Killing Of Death: Denying The Genocide Against The Tutsis, Kee En Chong

Genocide Studies and Prevention: An International Journal

No abstract provided.

A Legal Approach To Combating Terrorist Organization Funding Through The Counterfeit Market, Amanda Kusnierz

Cardozo International & Comparative Law Review

The note argues that counterfeiting has become a critical funding mechanism for terrorist organizations, particularly radical Islamic jihadist groups, due to its profitability and relative anonymity. Current legal frameworks, such as the Anti-Counterfeiting Trade Agreement (ACTA) and material support laws like section 2339B of the USA PATRIOT Act, are insufficient to address this threat effectively. The analysis highlights the need for stricter penalties, increased consumer awareness, and international cooperation to disrupt the financial networks supporting terrorism through counterfeiting.

Fifty Years Later And Miranda Still Leaves Us With Questions, Nicole Langston, Bernice B. Donald

Vanderbilt Law School Faculty Publications

This affords the suspect safeguards to make an informed choice between speech and silence and prevents involuntary statements. Although Miranda warnings are seemingly standard, the Miranda decision did not come without criticism.' Now, on the fiftieth anniversary of the Supreme Court's decision, the topic still garners intense debate.' Even after all of these years, there are still critics who do not support Miranda warnings, and now they rely on long-term studies about the effectiveness of Miranda warnings to support their positions. Yet, even with these new studies, there still remains some ambiguity about the effectiveness of Miranda rights concerning whether …

The Miranda Custody Requirement And Juveniles, Paul Marcus

Faculty Publications

Concerns about the interrogation process and the ability of minors to navigate the criminal justice system often intersect. The impact of the age of juveniles can be seen in a variety of judicial decisions, most markedly those dealing with punishment. But judicial concern for juveniles goes well beyond sentencing. The interrogation process raises especially grave fears.

Since the Supreme Court issued its landmark ruling in Miranda v. Arizona disallowing compelled inculpatory statements by criminal suspects and defendants, there has been concern as to whether juveniles fully understand and appreciate their rights as articulated in Miranda and based in the Fifth …

Bathroom Laws As Status Crimes, Stephen Rushin, Jenny E. Carroll

Faculty Scholarship

A growing number of American jurisdictions have considered laws that prohibit trans individuals from using bathroom facilities consistent with their gender identities. Several scholars have criticized these so-called “bathroom laws” as a form of discrimination in violation of federal law. Few scholars, though, have considered the criminal justice implications of these proposals.

By analyzing dozens of proposed bathroom laws, this Article explores how many laws do more than stigmatize the trans community—they effectively criminalize them. Some of these proposed laws would establish new categories of criminal offenses for trans individuals who use bathrooms consistent with their gender identity. Others would …

The Problem With Inference For Juvenile Defendants, Jenny E. Carroll

Faculty Scholarship

Much of criminal law relies on proof by inference. In criminal law, fact finders untangle not only what happened, but why it happened. It is answering the “why” question that places an act and its result on the legal spectrum of liability. To reach that answer, the fact finder must engage in an interpretive act, considering not only what can be seen or heard, but the significance of that testimony or physical evidence in real world contexts – the world in which they occurred but also the fact finder’s own world. Recent developments in neuroscience suggest that in the context …

Your Bodies, Ourselves: Legal Protection Of Potential Human Life, Jeffery A. Parness

The Catholic Lawyer

No abstract provided.

People V. Eulo: New York Adopts The Brain Death Standard For Homicide Cases

The Catholic Lawyer

No abstract provided.

Newsroom: Governor Raimondo On Rwu Law 09-19-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Newsroom: Representing Private Manning 09-18-2017, Edward Fitzpatrick, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Stein V. United States Of America (U.S. September 15, 2017) (No. 17-250)., Janet Moore

Faculty Articles and Other Publications

Petitioner’s case asks a basic but fundamental question: Will our criminal justice system permit convictions obtained through the knowing use of false testimony, simply because the prosecutor has not also suppressed evidence indicating the testimony was false? The Eleventh Circuit answered this question in the affirmative, but for decades this Court has known a very different justice system, one in which the knowing, uncorrected use of false testimony by the prosecutor could never be countenanced. And for good reason. As this Court has long recognized, the knowing use of false testimony is “as inconsistent with the rudimentary demands of justice …

The Death Penalty's Darkside: A Response To Phyllis Goldfarb's Matters Of Strata: Race, Gender, And Class Structures In Capital Cases, Kevin Barry, Bharat Malkani

Washington and Lee Law Review Online

In Matters of Strata: Race, Gender, and Class Structures in Capital Cases, Professor Phyllis Goldfarb examines the ways in which race, class, and gender affect the American criminal justice system generally, and its death penalty system in particular. This Response focuses on one of Goldfarb’s observations: The relationship between slavery and the death penalty. This relationship helps to explain why, over the past four decades, the thirteen states that comprised the former Confederacy have been responsible for nearly all of this nation’s executions. Although the U.S. Supreme Court has repeatedly failed to address the death penalty’s roots in slavery, …

The Welfare Effects Of Civil Forfeiture, Michael Preciado, Bart J. Wilson

ESI Publications

Using a laboratory experiment we explore competing claims on the welfare effects of civil forfeiture. Experiment participants are tasked with making trade-offs in allocating resources “to fight crime” with and without the ability to seize and forfeit assets. It is an open question whether the societal impact of reducing crime is greater in a world with or without civil forfeiture. Proponents of civil forfeiture argue that the ill-gotten gains of criminals can be used by law enforcement to further fight crime. Opponents claim that the confiscation of assets by law enforcement distorts the prioritization of cases by focusing attention, not …

The Federal Government's Role In Securing Justice In Domestic Abuse Cases, Margaret Groban

Maine Law Review

Domestic Violence is a national crime problem that knows no boundaries—it impacts people of all races, colors, creeds, nationalities, religions, and sexual orientation. It impacts the rich and the poor and the middle class. It is clearly an equal opportunity crime. From 1980-2008, over two-thirds of victims murdered by a spouse or ex-spouse were killed by guns. In 2008, 53% of these victims were killed with guns. When a gun was in the house, an abused woman was six times more likely than other abused women to be killed. The domestic violence problem in Maine is equally stark and tragic …

Unspoken Immunity And Reimagined Justice: The Potential For Implementing Restorative Justice And Community Justice Models In Police-Related Shootings, Hannah Walker

Pace Law Review

The purpose of this Note is to analyze the limitations of the criminal legal system when faced with cases of police-related shootings. Specifically, I will discuss two instances of police (mis)conduct that captured the attention of the nation in the past three years: the non-indictment of Cleveland Police Officer Timothy Loehmann and the conviction of NYPD Officer Peter Liang. First, by assessing the circumstances and responses to those two cases, I will argue that the criminal legal system is inherently incapable of responding to and remedying the violence that occurs in situations laced with power, privilege, and emotional trauma. Second, …

Criminal Law: Clarifying “Wrongfulness” In Insanity Cases, Kate E. Bloch, Jeffrey Gould

The Judges' Book

No abstract provided.